Article III and the Political-Question Doctrine, 116
Nw. U. L. Rev.
Available at: https://repository.uchastings.edu/faculty_scholarship/1847
Courts and commentators have often sourced the political question doctrine in Article III, a repository of other separation-of-powers doctrines applicable to the federal courts. Rucho v. Common Cause, a blockbuster political question case decided in 2019, explicitly tied the doctrine to Article III. But the historical development of the doctrine undermines the depth of that connection. Further, sourcing the doctrine in Article III leads to some very odd effects, including leaving state courts free to answer federal political questions. This Article argues that the source of the political question doctrine is in substantive law, not in Article III. Such an orientation helps explain a number of puzzling attributes of the doctrine, including why federal courts retain jurisdiction over political question cases, why state courts must follow the federal political question doctrine, and why some political questions can be delegated back to the courts. Refocusing the political question doctrine on substantive law, rather than on Article III, helps better allocate power among federal courts, state courts, and political branches.
Northwestern University Law Review